CAT Declines to order owner to stop smoking on balcony

In the case of Waterloo Standard Condominium Corporation No. 697 v. Kozhani, Kozhani, the condominium corporation alleged that the Respondent owners were not in compliance with the Corporation’s Rules respecting use of visitors parking and also were not in compliance with the Corporation’s “no smoking” Rule.

The Tribunal found that the owners had failed to comply with the Corporation’s Rules respecting visitors parking and ordered that they “immediately cease and refrain from parking their vehicles in spaces designated for visitor parking spaces”.

In relation to the smoking, the Tribunal found that the owners had smoked on their balcony, in contravention of the Corporation’s “no smoking” Rule.   However, the Tribunal declined to make any order (on this issue).  The Tribunal said that for the Tribunal to make an order respecting smoking “it is not enough for a corporation to argue or prove that its rules in respect to smoking were breached. A condominium corporation must show that the breach resulted in unreasonable smoke that was a nuisance, annoyance or disruption contrary to the Act and/or the corporation’s rules”.  The Tribunal went on to say: “I do not have such evidence before me in this case.”

Under Section 1 (1) (d) (iii.1) of Regulation 179/17, the Tribunal can make an order in relation to a dispute respecting provisions of a condominium corporation’s Declaration, By-laws or Rules “that prohibit, restrict or otherwise govern the activities described in subsection 117 (2) of the Act or section 26 of Ontario Regulation 48/01 (General)”.

Based upon the wording of Section 117 (2) of the Condominium Act and Section 26 of Regulation 48/01, the Tribunal held that there must be a proven nuisance, annoyance or disruption before the Tribunal can make a “cease and desist” order.

But I think the Tribunal might have applied a broader interpretation of Section 1 (1) (d) (iii.1) based upon the following:

• Under Section 1 (1) (c.1) of Regulation 179/17, the Tribunal already has jurisdiction over disputes under Section 117 (2) of the Act.  And a key principle of legislative interpretation is that each clause is assumed to have a purpose.  So, my question is:  What does Section 1 (1) (d) (iii.1) add to Section 1 (1) (c.1)?

• In my view, a “no smoking” rule is clearly designed to prevent nuisance, annoyance or disruption.  Put another way, a “no smoking” rule is clearly designed to reduce the risk of nuisance, annoyance or disruption (because we all know that smoke can possibly be a nuisance, annoyance or disruption if it reaches another person).   So:  It seems to me that a “no smoking” rule – which again is directed at preventing nuisances, annoyances and disruptions – is a Rule that “governs” activities that involve nuisances, annoyances or disruptions.

• As Courts and Tribunals have often said:  Condominium law is consumer protection law, which should receive a broad and liberal interpretation.   In my view, the Tribunal could have interpreted Section 1 (1) (d) (iii.1) of Regulation 179/17 as extending the Tribunal’s jurisdiction beyond the principles in Section 1 (1) (c.1) of the Regulation.

By way of summary:  In my view, the CAT can play an important role in promoting and enforcing Rules that are designed to prevent nuisances, annoyances and disruptions…..even before those problems arrive.  And I think this is contemplated by the words of Regulation 179/17.

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